No Fault Divorce - Q&A

What does ‘no fault’ actually mean in practice?

In theory, the no fault procedure should improve the divorce process for separating couples. Removing the need to place the responsibility of the breakdown onto one party prevents conflict between the parties. In turn this will make dealing with other issues more straight forward.

Why have they changed the law?

The previous divorce rules encouraged hostility and dishonesty, as couples who wished to divorce within two years of separation could only do so on the basis of adultery or unreasonable behaviour. This would mean dragging up or exaggerating the past to ensure that the petition was accepted by the courts. Those who chose to wait for the more amicable route of 2 years separation with consent endured the long lasting emotional and financial effects. If the other party wouldn't consent to the divorce, then they would have to wait for five years before they could get divorce ‘amicably’.

Can I apply under the existing way?

No. All the previous reasons for divorce have been removed and replaced by a simple statement to say that the marriage has broken down irretrievably.

I wanted my partner’s adultery and behaviour to be recognized in the divorce.

Separating couples are advised to use other avenues of support to deal with the hurt and anger of a divorce. Family Law practitioners hope that the changes will re-direct the focus of the parties towards the constructive resolution of the important matters, such as finances and children.

Will my partner get away more lightly when sorting out the finances or children if the courts are not aware of their behaviour?

No. What most people do not realise is that dealing finances and/or children are completely separate issues to the divorce. A respondent’s behaviour almost never has any bearing on financial matters under the old and new rules.

If I make the application, do I have to pay for it?

Under the new regime, the Court will not grant a costs order. That is not to say that the other party should not contribute to some or all of the costs. However, the parties will have to come to an agreement between themselves. The best way to ensure that you receive them is to get them upfront!

Is the no fault divorce quicker?

No. The new law still requires a couple to have been married for at least 12 months before they can apply for a divorce. However, under the new rules there must be a minimum of 20 weeks from the date of issue before an application for conditional order (previously called a decree nisi) will be considered. Once the conditional order has been granted, there is a further 6 week period before the application for the final order can be made. Therefore, the whole process will take a minimum of 6 months from start to finish. If parties have to deal with finances, especially through the court system, it's likely to take longer.

What happens if the respondent does not respond to the divorce?

If the respondent choses not to respond to the papers, then like the old procedure, the Applicant will need to prove to the satisfaction of the court that their spouse has received the notice of proceedings papers and has had the chance to respond. The most common way around this is to instruct a process server to serve the divorce papers on them personally. The courts will always accept this and will progress the matter, however there will be an additional cost.

Can I get divorced before sorting out the finances?

In short, yes. You can get a divorce without agreeing how to distribute the finances. However, it's vital that you seek advice and make yourself aware of any consequences that may arise from this. Common matters which can be affected by a divorce are pensions, benefits and wills.

It's important to deal with the finances as if you remarry, you will not be able to go back and deal with the finances from a previous marriage.

If me and my partner get along, do we even need a solicitor?

Whilst some people may feel comfortable applying for the divorce themselves, it's important to remember the value that a solicitor brings. Even if the parties have reached an agreement regarding the finances and the children, it's important to get a solicitor to record it properly in writing.

I am worried that if I get a solicitor I will end up with a huge bill.

Look for a solicitor who is a member of Resolution. Resolution is a code of practice which lawyers subscribe to. It ensures that they deal with matters constructively with minimal conflict. Most solicitors firms tend to offer a fixed fee for a divorce so you are aware of the costs from the outset.

If you need advice from a solicitor or are looking to get divorced, you can contact our family law and divorce solicitors who will be happy to help.